Context:

The Punjab and Haryana High Court recently granted bail to a Bangladeshi woman in custody since February 2025 for alleged cheating, forgery, and illegal stay in India. The court invoked Article 21 of the Constitution, affirming that foreigners also enjoy the right to life and personal liberty, and prolonged pre-trial detention of undocumented migrants may amount to “irreversible injustice.”

About the Case:

The woman, Farida Praveen, also known as Shikha Gaur, was arrested under Sections 420, 467, 468, 471 IPC and Section 14-A of the Foreigners Act.

·        She was accused of illegal entry, creating fake identity documents (Aadhaar, PAN, Voter ID), and financial fraud. The chargesheet was filed, but her continued incarceration raised legal and humanitarian concerns.

Implications for Governance :

·        Article 21 Protections Extend to Foreigners: The judgment aligns with Supreme Court precedents that “person” under Article 21 includes non-citizens, reinforcing India’s constitutional morality and international human rights commitments.

·        Bail as a Right, Not a Privilege: The ruling reflects a progressive interpretation of criminal procedure, emphasizing that pre-trial custody must be reasonable and just, especially for marginalized or stateless individuals.

·        Judicial Humanitarianism: By allowing release on personal bond, the court recognized the practical difficulties faced by undocumented migrants, especially women, in furnishing sureties.

·        Impact on Foreigner and Refugee Jurisprudence: The case adds to the evolving legal framework on the treatment of foreign nationals in India, highlighting gaps in detention, deportation policy, and human rights protections.

Bail under BNSS:

Bail refers to the temporary release of a person suspected or accused of a crime, with a guarantee that they will appear before the court when required.

·        While earlier this definition came primarily from judicial interpretation, Clause 479 of the BNSS, 2023 provides a statutory definition, enhancing legal clarity.

·        The BNSS also mandates that the accused must be informed of the grounds of arrest, aligning with the rights protected under Article 22 of the Constitution and mirroring provisions from Section 50 of the CrPC.

Key Changes in Bail Provisions:

The BNSS introduces mandatory bail for first-time offenders after serving one-third of the maximum sentence, as opposed to the half-sentence rule in the CrPC.

·        However, this benefit does not apply to those facing multiple charges or cases.

Fundamental rights available to foreigners:

Foreigners in India generally have access to fundamental rights, including

·        Article 14 (Equality before the law),

·        Article 20 (Protection from conviction for offenses),

·        Article 21 (Protection of life and personal liberty),

·        Article 21A (Right to elementary education for children),

·        Article 23 (Prohibition of human trafficking and forced labor),

·        Article 24 (Prohibition of child labor in factories), and 

·        Religious freedoms under Articles 25, 26, 27, and 28.

Conclusion:

The High Court’s ruling serves as a reminder that India’s constitutional values are not restricted to its citizens, but extend to every individual on its soil, regardless of nationality.